Union-Propagated Red Herrings Continue to Mar Corrections Research

Yesterday Mike Hall posted on AFL-CIO Now’s In the States blog about a recent report entitled, Prison Bed Profiteers: How Corporations Are Reshaping Criminal Justice in the U.S. from the National Council on Crime and Delinquency (NCCD). Unfortunately NCCD falls for red herrings propagated by public employee unions like the AFL-CIO, while ignoring pressing issues facing the U.S. criminal justice system. Specifically, they blame the private sector for problems that are more strongly correlated with the criminal justice system as a whole.

Since we know private prisons aren’t going away in the near future, we sought insight from experts about substantive ways to slow expansion and improve implementation, operation and oversight. A critical part of this effort is encouraging lawmakers and jurisdictions to consider other options that have been shown to be viable, particularly promoting alternatives to incarceration and, when choosing privatization, demanding stronger contracting and monitoring.

Harney is mostly right, but he misses the mark in one significant way. He should instead note that all prisons—public or private—aren’t going away in the near future. The U.S. prison population has been rising for decades (recently cresting in 2010) and the private sector only oversees 8 percent of the inmate population. The public sector oversees the other 92 percent of prisons, and controls practically every other aspect of the correctional system (writing legislation, enforcing laws, providing courts, determining sentencing, writing and overseeing private sector contracts, monitoring parole, etc.)

Meaningful reform requires an all-of-the-above strategy, not a distracting debate over public vs. private sector prison operation. This can best be addressed by considering the three elements of the U.S. criminal justice system: criminal sentencing, facility environments and recidivism.

1. Reform Criminal Sentencing

The first step is to revisit the laws that turn citizens into offenders. As my colleague Adam Summers and I wrote last year, “Too often, in an attempt to boost “tough on crime” credentials, strict minimum sentencing laws have been imposed when more proportionate punishments—such as rehabilitation programs and drug courts—would have been more appropriate and cost effective.” Common sense criminal sentencing reform is increasingly uniting advocates across the political spectrum that recognize the current system simply doesn’t work.

As Reason Foundation noted in Public-Private Partnerships for Corrections in California in 2010, one of the most egregious examples of faulty criminal sentencing is California’s “Three Strikes and You’re Out” law passed in 1994. The study concluded, “California’s consistently high recidivism rates suggest (the Three Strikes law has been ineffective in curbing criminal behavior.)”

More recent developments are highlighted in Reason Foundation’s Annual Privatization Report 2011: Corrections and Public Safety, such states like Colorado, Rhode Island and Washington State petitioning the Drug Enforcement Administration to reschedule marijuana, which is currently listed as a schedule I substance. Historically being "tough on crime" and supporting the so-called War on Drugs was politically profitable, but public attitudes are shifting, and criminal sentencing should reflect that shift.

2. Reconsider Facility Environments

The next step is to reconsider the environment in correctional facilities themselves. The public sector-dominated U.S. justice system is calcified, experiencing scant progress over the past few decades. Today, approximately 92 percent of inmates in (federal, state and local) are publicly operated facilities. While the share of privately operated facilities has increased, the public sector also maintains rigorous control through contracts. Counter to anti-privatization claims by public employee unions, Reason Foundation research suggests the private sector can actually serve as a positive change agent, both in its own facilities and in publicly operated facilities.

Gary Mohr, Director of the Ohio Department of Corrections, explained this potential in a recent Innovators in Action interviewsaying:

In a labor-oriented state, when we talk about outsourcing and privatization, it’s always a contentious topic. But my vision all along was this: we’re going to reform our system, which means that we need some catalysts for change. And my vision has been that you use competing forces. When you put in people that are earnestly concerned about competing and have a solid framework—which is the request for proposals (RFP)—what you can do is not just save resources, but you can literally enhance all of the operations by ratcheting up the standards and ratcheting up the best practices that can be created from both the public sector and multiple private vendors.

So in terms of reforming, we wanted to develop systems to reduce violence, and we wanted to develop programming to reduce recidivism, because that should be our measure, quite frankly. And what we have seen with this initiative is that we have reduced violence, and we’ve reduced the gang violence by 25 percent if we look at January through March of 2011 compared to the same period in 2012.

Now was that exclusively due to privatization? No. But I believe that the element of competition plays an important role in that.

In Brown v. Plata the Supreme Court ruled California's state prison system provided unconstitutional physical and mental health conditions. However these violations were occuring in publicly operated prisons. At the time of the ruling, California's prison system was at approximately 178 percent capacity, so the Court ordered a reduction in the prison population by over 40,000 inmates.

Out-of-state privately operated prisons served as a relief valve, both for the system as a whole and for individual inmates who were spared the unconscionable conditions of in-state publicly operated prisons. Out-of-state privately operated facilities also housed inmates at approximately half the cost of in-state publicly operated prisons, offering necessary cost savings when the system was under severe financial strain.

Contracting isn’t perfect, but it allows new conversations to be had over the environment inside correctional facilities. That’s why states like Florida, Pennsylvania, North Carolina, Arizona and elsewhere are considering new ways to leverage partnerships with the private sector for vital services like correctional healthcare. Rigorous performance-based contracting allows for more transparency and better outcomes in the long-run.

3. Reduce Recidivism

Finally, prioritize what happens to offenders after they leave prison by emphasizing recidivism reduction. Innovative new performance-based contracts are exploring rewarding private operators for lofty metrics like reducing recidivism. This new approach, dubbed “Corrections 2.0” in a 2011 Reason Foundation study of the same name, may positively turn the correctional system on its head. As my colleagues explain in the study:

Current government correctional systems can be characterized as a fragmented collection of facilities and services—including prisons, halfway houses, probation systems, home monitoring, programming and rehabilitation—and offenders move between these facilities and services with little continuity of knowledge of their particular history and rehabilitation progress, leading to little accountability and poor results for the successful return of these individuals to society...

Given the disjointed nature of the current system, it should come as no surprise that recidivism is a persistent challenge, with offenders in most states more likely to return to prison than remain in free society upon release.

Expanding the use of PPPs to create a continuum of care in corrections—one that follows offenders from intake, through prisons and into post-release services—would create a more integrated and coordinated system of programming and management to provide as ideal a programming continuum as possible to optimize outcomes while lowering costs.

Corrections 2.0 leverages incentives to harness private sector entrepreneurship and address recidivism so fewer people return to prison. The model is emerging in the United Kingdom, and Florida lawmakers have explored similar efforts that have yet to get off the ground. An update on the application of Corrections 2.0 can be found in Annual Privatization Report 2011: Corrections and Public Safety.

Ultimately, the private sector has proven to be a capable partner for the public sector and there’s no reason to ignore that success. As is always the case with privatization, rigorous contracting is necessary to achieve optimal outcomes. Blaming the private sector solves nothing. Instead, an all-of-the-above strategy is necessary to address the major challenges facing the U.S. criminal justice system.